ALJDEC decisions subject to certification as final

21F-200-REL · Department of Real Estate · 2021-07-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

DEREK DAHL, holder of License No. BR508956000,

Respondent

No. 21F-200-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 22, 2021

APPEARANCES: Derek Dahl appeared on his own behalf. Assistant Attorney General Holly Wan represented the Arizona Department of Real Estate.

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

On January 190, 2023, the Arizona Department of Real Estate (“Department”) issued real estate broker license number BR508956000 to Derek Dahl (“Respondent”). Respondent’s Broker License is scheduled to expire on January 31, 2023.

Respondent is the designated broker of Dahl LLC dba Dahl Real Estate (“Firm”) which holds LC669861000. The Firm’s license is scheduled to expire on January 31, 2023.

On January 27, 2021, Respondent submitted a timely renewal application for his Broker’s License. On that renewal application, Respondent disclosed a final administrative action issued by the Arizona Registrar of Contractors (“Registrar”).

On August 10, 2020, the Registrar issued its “Final Administrative Decision and Order.”

On September 10, 2020, Respondent requested his “Request for Review of the Hearing or Rehearing of Final Administrative Decision.”

On September 29, 2020, the Registrar denied Respondent’s request, indicating that the Final Administrative Decision and Order was “in full force and effect on November 8, 2020.”

Respondent did not disclose to the Department the Registrar’s August 10, 2020 Final Administrative Decision and Order within ten (10) days.

By letter dated January 29, 2021, the Department notified Respondent that it was renewing the Broker’s Licensure but reserving the right to consider discipline after further review of the disclosure.

At some point, the Department determined to pursue licensure discipline.

On April 30, 2021, the Department issued its Notice of Hearing and Complaint regarding the Respondent’s failure to disclose the Registrar’s agency action within 10 days pursuant to A.R.S. § 32-2153(A)(3) and A.A.C. R4-28-303(D) and R4-28-301(F).

The Department’s position is that Respondent’s action of failing to disclose the Registrar’s agency action within 10 days demonstrated that Petitioner is in violation of A.R.S. § 32-2153(A(3) and, therefore, the Department appropriately takes action to discipline Respondent’s Broker’s License. The Department proposed that the violation warrants a penalty pursuant to A.R.S. § 32-2160.01 and the related administrative rules.

In its Notice of Hearing, the Department proposed a penalty in the amount of $1,000.00.

At hearing, Respondent stipulated to the facts in evidence but argued that, as he began to fill out the disclosure form, he realized that it simply would not be possible to gather all the “certified” documentation requested within a 10-day period. Respondent argued that it was a Catch-22 in that he believed he could not submit the disclosure until he had all the requisite documentation. Respondent argued that the disclosure form does not state that a licensee could make a simple disclosure of the agency action and then supplement the disclosure with the requisite “certified” documentation.

At hearing, following discussion and presentation of the argument, the Department agreed to stipulate to a penalty amount to $500.00 in light of the confusion about submitting/disclosing the agency action and in what manner the Department accepts such disclosure.

CONCLUSIONS OF LAW

The Department bears the responsibility to protect the public through its enforcement of licensing statutes. This matter lies within its jurisdiction.

Petitioner bears the burden of proof and must establish that he meets statutory qualifications for a real estate salesperson’s license by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

A.R.S. § 32-2153 provides in relevant part as follows:

A. The commissioner may suspend or revoke a license, deny the issuance of a license, issue a letter of concern to a licensee, issue a provisional license or deny the renewal or the right of renewal of a license issued under this chapter if it appears that the holder or application, within five years immediately preceding, in the performance of or attempt to perform any acts authorized by the license ... has:

.....

3. Disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner.

.....

A.A.C. R4-28-303 (D) provides that a licensee shall notify the Department in writing within 10 days of any change in the individual's personal information or qualifications, including the information required under A.A.C. R4-28-301, such as a criminal conviction, adverse judgment, denial or restriction of or disciplinary action against a professional or occupational license. The rule calls for a written statement to be provided “with detailed information and, upon request by the Department, the supporting documentation identified in R4-28-301(A)(2).” Emphasis added here.

A.R.S. § 32-2160.01 provides that a licensee may be assessed a civil penalty, by the Commissioner, not exceeding $1,000.00 for each infraction of the applicable rules.

The Arizona Legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. The Department’s concern in these case is understandable. A person whose holds some other regulated license that has been disciplined is given close scrutiny and careful consideration when he or she applies for, or reapplies for, real estate licensure.

The hearing record demonstrated that the Registrar took disciplinary action against Respondent’s ROC License in the form of a $500.00 penalty and a one-day suspension (on a Saturday).

In the matter at hand, the Administrative Law Judge concludes that, with the stipulation to the facts, and the concession regarding Respondent’s confusion about the disclosure process options, a civil penalty in the amount of $500.00 is appropriate.

RECOMMENDED ORDER

The Commissioner shall affirm the Department’s concession to a $500.00 civil penalty amount in discipline, for the stipulated failure to disclose the Registrar’s disciplinary action decision within ten days, in resolution of Respondent’s appeal.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order shall be five days from the date of the certification.

Done this day, July 12, 2021.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate